Court File and Parties

Court File No.: Toronto Region Ontario Court of Justice

Between:

Her Majesty the Queen

J. Hanna, for the Crown

— And —

Asif Ayenun & Jennifer Garion

S. Shikhman, for Asif Ayenun and M. Schwartzentruber for Jennifer Garion

Heard: December 13, 14, 20, 2012, January 25, 2013

FELDMAN J.:

Introduction

[1] Asif Ayenun and Jennifer Garion entered not guilty pleas to charges of Assault Bodily Harm, Forcible Confinement and Intimidation. It is alleged that on the day following a purported sexual encounter between Ms. Garion and the complainant, Vijay Shetty, the latter was lured to the defendant's home, where in the presence and with at least the moral support of the defendant, he was set upon by the co-accused, Ayenun, and an unidentified assailant and suffered significant injuries.

[2] On Dec. 30, 2011, Ms. Garion, the complainant and two mutual male friends spent the evening together in the defendant's home. Evidence was called suggesting that at one point Ms. Garion and the complainant were sitting on a couch next to each other and "flirting". It is conceded they were close friends. In addition, it is alleged that the defendant encouraged Mr. Shetty to consume alcohol and that he did so. The complainant testified that he stayed the night and had sexual intercourse with Ms. Garion for the first time.

[3] Counsel for Ms. Garion, supported by counsel for Mr. Ayenun, submits that evidence of "flirting" is prohibited by the common law principles set out in R. v. Seaboyer, [1991] S.C.J. No. 62 (S.C.C.) as irrelevant, misleading and prejudicial. As well, she says that her client's alleged encouragement of her guests to consume alcohol is both speculative and inadmissible as bad character evidence.

[4] It is necessary to consider these submissions in the context of the evidence called to this point in the proceedings.

The Evidence

[5] Mr. Shetty told the court that he knows both accused having attended school with them over the years. He described Ms. Garion as a very good friend, said he would see her fairly often and that they were at times playful and flirtatious with each other. He understood both accused to have had an on-and-off relationship.

[6] The complainant testified that on Dec. 29, Ms. Garion contacted him and two of their mutual friends, Shashi Ramdass and Anenthan Alagarajah, to get together that evening. Mr. Shetty arrived about 10 p.m. and had something to eat. His friends had come over earlier. They all then played video games in the defendant's bedroom after which they spent time talking in the living room.

[7] Mr. Shetty said that while they were in the bedroom someone knocked at the window several times. He claims that the first time it happened Ms. Garion told them it was Asif but that she did not want to deal with him and that everyone should ignore him. He said that when it happened a second time Ms. Garion left for about 10-15 minutes. He claimed she told him afterwards that she was no longer dating the co-accused.

[8] The complainant gave evidence that he, the accused and Shashi consumed alcohol. His friends left sometime after midnight. Mr. Shetty remained and he says that he and Ms. Garion had sexual relations. He recalls further tapping at the bedroom window during their intimacy. He says the defendant at first told him to ignore the knocking but when it continued she left the room and was gone for about 30-60 minutes.

[9] Mr. Shetty testified that when Ms. Garion returned she said she had spoken with Asif, that he just wanted her to be happy and that she did not want to see him anymore. They both then went to sleep and got up around 6 a.m. The complainant went to work that day.

[10] Later that evening, one of the several texts he received, purportedly from Ms. Garion, asked him to call her. In other texts, set out in Exhibit 3, then assumed by the complainant to have been written by the defendant, she expressed being upset and confused over the intimacy and pressed Mr. Shetty to come over and deal with her concerns. Some of the content of the exchanges included the following:

Ms. Garion: "about last night, I have been vulnerable for a long time now, my relationship with Asif was growing distant ever since he started school for law and spent most of the time on that; you were a good friend, I tried to replace him with you by hanging around…you which led to things which was unfair to both of us…"

Mr. Shetty: "How was it unfair to you?"

Ms. Garion: "Us hooking up and doing those things when I was very vulnerable."

Mr. Shetty: "Is that something I did to you?"

Ms. Garion: "I needed a friend to talk to and instead of talking we went straight to intimacy. I regret it."

Mr. Shetty: "Talk to about what exactly? What were you hoping for? We've been getting physical for almost 4 years anyways. Do you regret all of it? What made yesterday anymore inappropriate?

[11] The defendant then asked that he call her. The complainant said he would do so before he went to sleep. In another text message she asked him to come over, but he said he had to be up at 5 a.m. to open the bank where he worked.

[12] The complainant then questioned "why"? The defendant responded, "I really need to talk to you here…Vijay please…this is very confusing for me, please come…Vij don't make me beg anymore, can you come see me here?" The complainant said they will have to talk over the phone or after he finishes work the next day.

[13] Ms. Garion seemed to accept this and said, "okay, what time will you be done work tomorrow? Can you please come here after? I will be waiting at home". Mr. Shetty asked her if she was okay and she thanked him for that, telling him she will see him at 4 p.m. with a happy face.

[14] Prior to his arrival, Ms. Garion responded to the complainant's question about the agenda for the meeting by indicating they would be having "just a private conversation". Mr. Shetty arrived at the defendant's home around 5:15 p.m. At first, no one answered the door so he texted the accused who then let him in.

[15] The complainant testified that upon entry he was almost immediately hit in the face and then set upon by Mr. Ayenun and an unidentified assailant enduring punches and kicks to his abdomen, ribs and head. He asked them to stop.

[16] He said Ms. Garion was present for most of the assault. He recalls Mr. Ayenun asking him if he didn't think he would know and questioned whether the complainant thought he could get away with what he had done. He recounted that the accused spoke of how violent he could become and that he referred to violent acts he had done in the past.

[17] He said Mr. Ayenun asked him if he and Jennifer had ever had sex prior to Dec. 30, to which he said no. He believes Ms. Garion was crying at times during the course of the assault although he heard her speaking on occasion to the two assailants. He never heard her telling the men to stop the assault. She did not respond to his plea for help.

[18] The complainant told the court that Asif warned him not to go to the police or he and Ms. Garion would report that he had raped her. He said Ms. Garion threatened to do this as well. He was instructed to pick up some bottles so that he would leave his fingerprints and to place his lips on some cans in order to deposit some of his saliva on them. Mr. Shetty complied with this direction.

[19] The complainant deleted any information on his phone concerning Ms. Garion as ordered by her co-accused who also wrote down information from the complainant's personal and financial cards and documents. Mr. Ayenun warned that he would be watching him or having others do that for him.

[20] Mr. Shetty testified that Asif told him not to return to the neighbourhood and that his own law studies meant he would know how to make the complainant look like a rapist. The defendant told him it was he who was texting him from Ms. Garion's cell phone and additionally that he didn't mean to hit him so hard, but got carried away.

[21] Police photos showed significant injuries to the complainant, including swelling of his right ear, scratches on his forehead, bruises on both sides of his face and bruising on his left hand. It is conceded by the defence that the complainant suffered fractures of two ribs, a partial collapse of his left lung and a small puncture in the lining around his lung.

Positions of the Parties

Position of the Defence

[22] Ms. Schwartzentruber, for the defendant, Garion, submits that an important common law principle set out in Seaboyer and applicable here emphasizes the need to remove any discriminatory belief or bias from the fact-finding process. More specifically, she says, in relation to the "flirting" evidence, that it would involve "impermissible and dangerous reasoning based on incorrect and sexist notions" to rely on that evidence for the purpose of corroborating the testimony of the complainant that he and the defendant Garion had consensual sexual intercourse after their friends left and as part of what she suggests was a continuous transaction from the time they were sitting close together on a couch and whispering to one another.

[23] Put another way, counsel says the "flirting" allegation, considered in the authorities as sexual activity, is more prejudicial than probative in relying on the prohibitive reasoning contemplated in Seaboyer and codified in s. 276 that women who have engaged in previous sexual encounters with the same person or others or are "unchaste" are more likely to consent to subsequent sexual activity or are not credible or worthy of belief. These are referred to as the "twin myths".

[24] While s. 276 speaks to protection of the privacy and dignity interests of the complainant, Ms. Schwarzentruber suggests, I think as a matter of logic and principle, correctly, that at common law an accused is entitled in this regard to at least the same degree of protection against such irrelevant and prejudicial evidence given the significant jeopardy he or she might face to his or her fair trial and liberty interests.

[25] She says that I must act as gatekeeper to reject evidence that relies on the stereotypical assumption that in light of the flirting, the complainant was more likely to have engaged in consensual sexual intercourse. She even suggests that a trier of fact may be unable to overcome the unconscious but impermissible underlying reasoning in this regard.

[26] In summary, Ms. Schwarzentruber submits that the evidence of flirting is in these circumstances inadmissible as not relevant to a material issue of fact, as is the evidence that Ms. Garion encouraged others to drink alcohol, all of which, she says, will distort the trial process and render these proceedings unfair.

Position of the Crown

[27] Mr. Hanna, for the prosecution, says that the evidence of flirting is probative of the closeness between Ms. Garion and the complainant that was conceded by the defence. He submits it is relevant to motive, that is, awareness of it on the part of Mr. Ayenun that, in addition to the subsequent sexual contact, made him jealous and led him to punish the complainant as alleged. The Crown says the evidence seen in this light is more probative than prejudicial of a material issue of fact and that in a judge alone trial the trier of fact is capable of directing him or herself to reject impermissible reasoning.

[28] Mr. Hanna submits that this disputed evidence is an important link in a chain of reasoning that makes it more likely Mr. Ayenun believed something romantic or intimate happened between the complainant and co-accused. The Crown says that, in addition, to exclude it from consideration would distort the fact-finding process by shielding both accused from cross-examination on a material issue of fact and favouring their interests over that of the complainant. He says its omission would re-create by inference a less probable, in that way less credible, account by the complainant of the evolution that evening of real world social connection between two close friends leading to consensual sex. Regarding the defence contention that a trial judge may be incapable of overcoming the unconscious bias emanating from the impermissible reasoning discussed here, he points out that a trial judge is presumed to know the law and that moral prejudice is not and should not be a significant concern in a judge alone trial.

The Authorities and their Application to this Case

Impermissible Reasoning

[29] The relevant principles upon which the parties rely are found in the authorities. In R. v Seaboyer, [1991] S.C.J. No. 62 (S.C.C.), the Chief Justice struck down the constitutional validity of Code sections 276 and 277 as they were then written but, at para. 91, set down a common law principle, "adapted to conform to current reality", that evidence of sexual conduct and reputation cannot be regarded as logically probative of either the complainant's credibility or consent, asserting that the so-called "twin myths" had "no place in a rational and just system of laws".

[30] Parliament subsequently codified the guidelines in Seaboyer in a version of s. 276, the constitutional integrity of which was upheld by the Supreme Court in R. v. Darrach, 2000 SCC 46, [2000] S.C.J. No. 46. That court reinforced the principle that the "twin myths" or sexist beliefs about women are not probative of consent or credibility and "can severely distort the trial process". In this regard, Gonthier J. said, at para. 34, that, "the Criminal Code excludes all discriminatory generalizations about a complainant's disposition to consent or about her credibility based on the sexual nature of her past sexual activity on the grounds that these are improper lines of reasoning".

[31] He went on to say, at para. 43, that s. 276 was designed to exclude irrelevant information, as well as only that relevant information that is more prejudicial to the administration of justice than is probative.

[32] Finally, s. 276 is to apply to all sexual activity on the part of the complainant, whether with an accused or with someone else. It is of significance to this case that sexual activity includes "flirting": R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, at para. 44.

[33] These principles tend to support the submission of counsel for Ms. Garion that I be particularly mindful of discriminatory and improper reasoning when considering the relevance of evidence of "flirting" both in relation to narrative and with regard to material issues of fact. I agree as well that a principled application of Seaboyer guidelines to the fair trial and liberty interests of the accused, as much as to the dignity and privacy interests of the complainant, is as a matter of fairness and common sense the correct approach to the weighing of the disputed evidence in this case.

[34] At the same time, as indicated by Fuerst J. in R. v. Temertzoglou, [2002] O.J. No. 4951 (O.S.C.), following Darrach, s. 276 does not function "as a blanket exclusion of evidence of other sexual activity", particularly where that omission would leave the trier with a "misleading impression" of the relationship.

[35] Justice Fuerst made reference to R. v. M.M., [1999] O.J. No. 3943 (O. S.C.), where prior sexual activity between the parties was admitted because the development of their relationship was necessary to provide context so that the evidence would not be assessed in a vacuum and lead to the perception that the testimony of the accused, in the case at bar the complainant, was improbable. In this regard, see also R. v. Harris, [1997], O.J. No. 3560 (Ont. C.A.); R. v. Strickland, [2007] O.J. No. 517 (O.S.C.), at para. 34-35; R. v. B.B., [2009] O.J. No. 862 (O.S.C.), at para. 19-20; R. v. W.J.A., [2010] Y.J. No. 118 (YKTC), at para. 35.

[36] The admitted closeness of the complainant and female accused, expressed that evening in part by flirting, is in my view of the evidence relevant to an understanding of the nature of their relationship that the Crown is entitled to develop in the evidence. To exclude it and rely on a mere admission of closeness would tend to diminish its material force and distort the fact-finding process in favour of the accused by permitting the inference that any subsequent sexual activity occurred "out of the blue": R. v. Strickland, [2007] O.J. No. 517 (O.S.C.), at para. 22. As Moldaver J. said in R. v. Jesse, [2012] S.C.J. No. 21, at para. 53, an accused is entitled to a fair trial, not a trial in which the playing field is tilted in his or her favour.

[37] At the same time it is clearly understood that evidence of flirting has narrow relevance and does not bear upon consent to intercourse. The trier must direct him or herself to reject impermissible reasoning on that issue of fact. Judges are particularly mindful of this important and nuanced principle in the same manner they are presumed to know the law and the proper and improper uses of evidence: R. v. T.B., 2009 ONCA 177, [2009] O.J. No. 751 (Ont. C.A.).

Relevance

[38] In R. v. Pilon, 2009 ONCA 248, [2009] O.J. No. 1172 (Ont. C.A.), Doherty J.A. described evidence as relevant if "as a matter of common sense and human experience it makes the existence of a fact in issue more or less likely".

[39] As indicated, evidence of flirting, even the accused's purported encouragement that her friends consume alcohol, have relevance in understanding the nature of her relationship with her friends in the context of the events of that evening. In my view, the notion of relevance with regard to flirting applies all the more so on the evidence in relation to motive in the circumstances of the next day's allegations. The evidence of drinking and its encouragement bears on social behaviour, not character.

Motive

[40] As I understand Ms. Swartzentruber's submission, evidence of Ms. Garion's role in the alleged flirting and drinking may be relevant, but its probative value is outweighed by its prejudicial effect. Mr. Hanna submits to the contrary. On this evidence, there is support in the authorities for the Crown's position, in effect, that in his physical attack on the complainant, Mr. Ayenun was motivated by jealousy and anger at what was alleged to have occurred as between Mr. Shetty and the co-accused to the degree that he exacted a price in vengeance.

[41] In R. v. S.G.G., [1997] S.C.J. No. 70, Cory J. held, at para. 64, that evidence of motive is always relevant in that it makes it more likely the accused committed the crime, although it is not an essential element of criminal responsibility. He went on to say that even if that evidence may also demonstrate bad character, it is admissible when directly relevant to the Crown's theory of the case, as long as its probative value outweighs its prejudicial effect.

[42] As noted earlier, closeness as between the complainant and Ms. Garion is conceded, a fact that has relevance in the context of all other evidence bearing on motive. There is some evidence to be weighed that Mr. Ayenun was upset, possibly unaccepting, of the breaking off of his relationship with the co-accused, that he was present outside the house during the alleged "flirting" in relation to which it is open to be inferred he was aware of it and that he spoke directly to Ms. Garion during the course of the evening. In addition, his presence the next morning and his alleged infliction of serious injury on the complainant, together with his purported admission to his alleged victim that he got carried away, all tend to support the inference of motive and its material relevance in those circumstances.

Conclusion

[43] In summary, I am persuaded that the allegations of flirting and encouragement to drink have on the evidence material relevance in relation to context and motive that is here more probative than prejudicial and that the court is mindful of and can be vigilant in avoiding impermissible reasoning where it concerns the "twin myths". The disputed evidence will be admitted.

Released: May 15, 2013

Signed: "Justice L. Feldman"